Summary

I told them, I cried, that I couldn’t go back to
my country… but they deported us.

—Alicia R., deported from the United States following
Border Patrol screening in August 2014 with her two children, ages 3 and 10,
feared retribution from gang members in Honduras after witnessing the murder of
her mother.[1]

Migrants from Central America and Mexico seek to enter the
United States without authorization for many reasons. Some seek economic
opportunity. Others are fleeing violent gangs in countries such as Guatemala,
El Salvador, and Honduras, where local officials may be complicit with gangs or
otherwise unable or unwilling to provide meaningful protection. Many have mixed
motives for leaving, including poverty, gang violence, and reuniting with
separated family members.

At the US-Mexico border, US immigration officers issue
deportation orders to unauthorized migrants in accelerated processes known as
“expedited removal” or “reinstatement of removal.”
These processes include rapid-fire screening for a migrant’s fear of
persecution or torture upon return to their home country or an intention to
apply for asylum. As detailed in this report, this cursory screening is failing
to effectively identify people fleeing serious risks to their lives and safety.

In the past two decades, US laws and policies have become
less responsive to the risks faced by arriving migrants seeking asylum from
persecution. In 1996, and subsequently in 2006, the US government severely
undermined the system for identifying asylum seekers through the establishment
and expansion of expedited removal. The flaws of that approach are readily
apparent today at the US-Mexico border.

This report is based on 35 interviews with Central American
migrants in detention in the US or recently deported to Honduras. While
focusing on the situation facing Hondurans, our findings and recommendations
apply to others coming to the US from Central America and Mexico.

All migrants we interviewed expressed a fear of returning to
Honduras. Some of those who had been returned to Honduras had fear so acute
that they were living in hiding, afraid to go out in public. Several who were
recently deported provided accounts that, if true, should qualify them for
asylum in the US. They said that, prior to attempting to enter the US, they had
been subject to serious threats from gangs in Honduras. These included small
business owners who refused to make demanded payments to gangs; victims of or
witnesses to gang crimes, including murder and rape; and fear of a gang
forcibly recruiting a family’s young son. Others fled abusive domestic
partners or violence related to sexual orientation, both grounds for asylum
under US law.

Virtually all of those we interviewed who had been
apprehended at or near the border were deported summarily, via expedited
removal or reinstatement of removal. Many said they had expressed their fears
to US Border Patrol officials charged with screening for fear of return before
being deported, but fewer than half of these were referred by US Border Patrol
for a further assessment of whether they had a “credible” or
“reasonable” fear of returning to Honduras. US law requires that
when a migrant in expedited or reinstatement of removal expresses a fear of
return to their country of origin, they be referred to a US Citizenship and
Immigration Services (USCIS) asylum officer for an interview to determine
whether their fear might qualify them for asylum or other protection.

Human Rights Watch was unable to corroborate claims about
the specific dangers interviewees said they faced in Honduras. However, the
experiences they described and the fears they expressed should have led US
immigration authorities to give their cases sufficient scrutiny before they
were returned to their home country. The principle of nonrefoulement, the right
not to be returned to a place where one would likely face threats to life or
freedom or other serious harm, recognized under both US and international law,
demands as much.

* *
*

The vast majority of migrants crossing the US-Mexico border
without authorization are placed in detention and undergo a hasty two-part
assessment by US officials under either “expedited removal,” for
first-time border crossers, or “reinstatement of removal,” for
migrants who have previously been deported from the United States.

In either case, to pass the first stage an agent from
Customs and Border Protection (CBP) or another US immigration agency must flag
the person for a “credible fear” or “reasonable fear”
assessment. To pass the second stage, migrants meet with an asylum officer from
USCIS who determines whether their fear of return is “credible,” or
in reinstatement cases, “reasonable” – that is, whether there
is a significant possibility they will prevail in immigration court on their
claim for asylum or protection from deportation to a country where they are
likely to face torture.

While there is evidence that fewer people are passing
through this second stage,[2]
Human Rights Watch’s investigations in Honduras suggests that many asylum
seekers are being turned away in the first stage. The failure of CBP and other
US immigration agencies to identify asylum seekers raises concerns that the US
government is violating its international human rights obligations to examine
asylum claims before returning them to places where their lives or freedom
would be threatened.

Data for 2011 and 2012 that Human Rights Watch obtained from
Customs and Border Protection under the Freedom of Information Act indicate
that few Central American migrants are identified by CBP as people who fear
return to their country in the first stage of the expedited removal process.
The data show that the vast majority of Hondurans, at least 80 percent, are
placed in fast-track expedited removal and reinstatement of removal proceedings
but only a minuscule minority, 1.9 percent, got flagged for credible fear
assessments by CBP. The percentages for Mexico, Honduras, El Salvador, and
Guatemala are similar, ranging from 0.1 to 5.5 percent. By comparison, 21
percent of migrants from other countries who underwent the same proceedings in
the same years were flagged for credible fear interviews by CBP.

CBP has a proactive duty to initially screen migrants for
fear of return to their country of origin when it apprehends them crossing the
border and places them in expedited or reinstatement of removal. However, a
migrant may be identified as fearing return to their country by an immigration
official after they have left CBP custody and entered the custody of
Immigration and Customs Enforcement (ICE), the agency responsible for more
prolonged detention of migrants. ICE, however, does not have a duty to
proactively screen all migrants in its custody for their fear of return. It is
telling, then, that the majority of credible and reasonable fear referrals that
USCIS received in 2011 and 2012 did not come from CBP, but from ICE and other
immigration agencies that learn of migrants’ fear of return on an ad-hoc
basis. In 2012, for example, CBP referred only 615 of the 2,405 Hondurans who
eventually were flagged for credible fear interviews by USCIS.[3] Approximately
three-quarters of the credible fear referrals USCIS conducted in 2012 came from
agencies other than the CBP, even though that year CBP was responsible for
approximately 57 percent of all noncitizen apprehensions.

Migrants who feared returning to Honduras told Human Rights
Watch about problems they encountered at all stages of the summary removal
process: some said that US border officials ignored their expressions of fear
and removed them with no opportunity to have their claims examined; others said
border officials acknowledged hearing their expressions of fear but pressured
them to abandon their claims. For those who were referred for “credible
fear” interviews, some said they were intimidated and confused by the
interview process and complex immigration court asylum proceedings that they
had to navigate on their own while detained and without legal assistance.

When immigration officials place potential asylum seekers
from Honduras and other Central American countries in summary removal without
putting them into the “credible fear” process, the migrants have no
opportunity to have an asylum officer or immigration judge consider their case.
US immigration courts are badly backlogged, but many migrants apprehended in
the interior of the country – and thus not subject to Customs and Border
Protection custody – are able to present their defenses against removal
from the United States, including any claims to asylum, before a decision-maker
who can make a more thorough examination of their claims.

Things are different at the border. Research by Human Rights
Watch and others show that the CBP’s methods for interviewing migrants in
expedited removal procedures are seriously flawed. Unlike “credible or
reasonable fear” assessments, which usually last over 45 minutes and take
place at least 48 hours after a migrant is in ICE custody, Border Patrol
screening interviews occur in Border Patrol stations and are much shorter.
Uniformed CBP officers are usually armed while apprehending migrants; when they
interview the migrants a few hours or days later their holsters are empty but
visible; they often conduct interviews in crowded settings, without
confidentiality from family members or others. All of these factors appear to
hamper the ability of officers to identify those in need of more in-depth
screening. The migrants we interviewed said that the CBP officers whom they
encountered seemed singularly focused on removing them from the United States,
which impeded their ability to make their fears known.

One man who was deported in September 2014 told Human Rights
Watch that when he informed a Border Patrol officer of the threats to his life
in Honduras, “He told me there was nothing I could do and I didn’t
have a case so there was no reason to dispute the deportation…. I told
him he was violating my right to life and he said, ‘You don’t have
rights here.’”

Arriving migrants in expedited removal or reinstatement of
removal are subject to mandatory detention under US law. In recent years, this
has meant US immigration officials have exercised their discretion not to use
these accelerated procedures for most arriving families with children, which
would mean they would be mandatorily detained, opting instead to place families
in removal proceedings before immigration judges. In 2009, facing lawsuits and
under pressure from rights organizations, the Obama administration ended family
detention at the T. Don Hutto Detention Center, which had 490 beds for the
detention of migrant families with children. Since it was one of two migrant
facilities in the country equipped to detain families with children (the other,
in Berks, Pennsylvania, has 85 beds), this decision indicated an intention to
drastically reduce the practice of detaining families.

Since that time, however, the US government has reversed its
plans. In June 2014, the Department of Homeland Security (DHS) established two
detention facilities in Artesia, New Mexico, and Karnes, Texas, with between
500 and 700 beds each to hold arriving families. In September 2014, DHS announced
plans to contract with a private prison company, the Corrections Corporation of
America, to build a 2,400-bed family detention facility in Dilley, Texas. The
facilities now in operation have been used to detain families primarily from
Honduras, Guatemala, and El Salvador who are in the process of expedited
removal.

International law prohibits the detention of migrant
children and discourages the detention of asylum seekers. Detention interferes
with individuals’ ability to assert claims to asylum, access counsel, and
harms the physical and mental health of children as they struggle with life
behind bars and the uncertainties of indefinite detention. These policies also
contravene international standards against the use of immigration detention to
deter asylum seekers.

Human Rights Watch urges the Obama administration and the
Congress to immediately address US border policies that are risking the lives
of Central American migrants. They should cease fast-tracking Central American
migrants for deportation to ensure migrants have an adequate opportunity to
make a claim for asylum. If fast-tracking continues, the US should take
immediate measures to ensure all migrants who express fear are being flagged
for further screening. The administration should also reverse its decision to
expand the detention of migrant families, evidenced by the creation of two new
family detention facilities in June and July and plans announced in September
to build a 2,400-bed facility in Dilley, Texas. Finally, the government should
increase migrants’ access to legal counsel, which would improve handling
of asylum claims and better ensure the US does not return people to countries
where they face persecution or torture.

Methodology

This report is based largely on interviews conducted by
Human Rights Watch from September 4 to 12, 2014 in three cities in
Honduras—San Pedro Sula, Comayagua, and Tegucigalpa—as well as
interviews in July and September 2014 in family detention facilities in
Artesia, New Mexico, and Karnes, Texas. We also interviewed officials at Border
Patrol facilities in McAllen, Texas in July 2014. Human Rights Watch
interviewed 25 Hondurans who were recently deported from the United States, 10
Central American detainees in family detention centers, and one in an adult
detention center in the United States. We also interviewed migrant services
providers, lawyers, academics, and government officials in Honduras and in the
United States.

Human Rights Watch carried out interviews in English or in
Spanish, depending on the preference of the interviewee, without interpreters.
We informed the interviewees of the purpose of our research and did not pay
them or offer them other incentives to speak with us. In some cases in the
report, we have used pseudonyms and withheld other identifying information to
protect interviewees and their families from possible retaliation.

The report also contains quantitative analysis of data
acquired from CBP via US Freedom of Information Act requests. The data contains
information on all CBP apprehensions through fiscal years 2011 and 2012 (more
than 683,000 apprehensions). Analysis is focused on descriptive statistics of
the nationality and disposition variables.

I. Background on Threats in
Honduras

Honduras suffers from rampant crime and impunity for human
rights abuses. The murder rate, which has risen consistently over the last
decade, was the highest in the world in 2013.[4]For young adult males between the ages of 20 and 34, the murder rate in
Honduras exceeds 300 per 100,000.[5]

Violence in Honduras is largely the result of conflict over
control of drug trafficking routes and turf wars between criminal groups,[6] although,
as in many other countries, these groups target other people in their
communities as well. Local street gangs, the key drivers of violence, are
primarily affiliated with transnational gangs such as the Mara Salvatrucha (or
MS-13) or Barrio 18 (also known as Calle 18, La 18 or Mara-18).[7] Both groups exert
influence over entire neighborhoods, profiting economically by levying an impuesto
de guerra or “war tax” on residents and local business people.[8] Failure to
pay this “tax” can result in violent retaliation by gangs.[9]

Witnesses to gang-related crimes in Honduras fear
retaliatory violence, whether or not they speak out about what they have seen.[10]
“Here in Honduras, you can’t make a complaint, because then the
gang comes and finishes your family,” said one man who survived a
near-fatal attack by a gang member.[11]

Gang death threats may follow a person wherever they go
within the country. As Central American gang expert Thomas Boerman puts it,
“if you go to a new community everyone recognizes you as a stranger
including the police officers and the gang members. It takes only a little bit
of time for anyone looking for you to find you.”[12]

Young people are often targeted by gangs for recruitment and
to carry out crime.[13]
Gangs typically recruit poor, homeless, or marginalized youth, sometimes
putting them through initiation rituals involving violent acts. Membership is
seen as a life-long commitment and desertion is severely punished. One father,
speaking of his 10-year-old son, told Human Rights Watch, “I’m
scared for him. They already start making them do things at 10.”[14]

Girls may also be targeted by gangs for forced recruitment
or sexual harassment and abuse.[15]
Cecilia N., a 14-year-old girl who was deported from the US with her mother,
said, “I’m terrified because they have taken girls from my school
and raped them.”[16]
After her visit to Honduras in July 2014, the United Nations special rapporteur
on violence against women noted that violent deaths among women had increased
by 263 percent between 2005 and 2013 and that reports indicated a 95 percent
rate of impunity for femicide and sexual violence crimes.[17]

Bias-motivated attacks on lesbian, gay, bisexual,
transgender, and intersex (LGBTI) people are also a serious problem. The
alleged involvement of Honduran police in some of these violent crimes is of
particular concern. In 2011 and 2012, the government established special
prosecutors’ units to investigate these crimes, yet there is no evidence
that these efforts have resulted in a significant increase in prosecutions.[18]

Perpetrators of killings and other violent crimes in
Honduras are rarely brought to justice. The institutions responsible for
providing public security continue to be largely effectual and are marred by
corruption and abuse, while efforts to reform them have made little progress.[19] Criminal
groups have reportedly deeply penetrated the Honduran national police,
demanding bribes and passing information to criminal groups.[20]

II. First-Hand Accounts: Threats Facing Returned Hondurans

Hondurans interviewed by Human Rights Watch who had been
recently deported from the United States said they were subject to specific
threats that, if true, would make them eligible for asylum in the United
States. Many described threats from gangs in Honduras. Some of these threats
arose from the common practice of gangs demanding extortion payments from small
business owners. Others were victims or witnesses to crimes such as murder and
rape and targeted on that basis. One said that he feared the forced recruitment
of his young son into a gang. Others faced dangers from other sources,
including abusive domestic partners. Nearly all said they had no meaningful
protection from such violence in Honduras.

Some said their fear was so acute that they were afraid to
go out in public after they were deported to Honduras.[21] One 27-year-old man
told Human Rights Watch he could not leave his sister’s house nor tell
his four young children that he was back in the country for fear of being found
by gangs. He described leaving the house only rarely and, even then, only when
wearing a motorcycle helmet with a darkened visor.[22] A deported woman described
moving from house to house among her relatives every few days for fear of
retaliation by the gang that she had witnessed murder her mother.[23]Almost
everyone suffering these kinds of threats told Human Rights Watch that they
planned to try to flee the country again as soon as possible.

Mateo S., who was deported from the United States to
Honduras on September 9, 2014, told Human Rights Watch:

It’s run by a gang where I live. I can’t say
the name, because it wouldn’t be safe, but they are in charge…. I
had my own business here in my city. I sold bleach and other cleaning supplies
from house to house. At some point, the gang started to ask me for money. Here,
they call it a “war tax.” Eventually, they were asking me for about
US$300 dollars a month, which is the same thing here as the minimum wage. It
was impossible for me. They saw that I couldn’t pay this money so they
started to mess with my family, with my son, who is seven years old, and with
my wife. Eventually, they were threatening me all the time. I was paying them
money for six to eight months, every month. And then I couldn’t pay it
anymore and my business went bankrupt and then I was using our savings to pay
the gang members. I had to pay because I was afraid they would do something to
my family.

Then they tried to kidnap my son in June 2014. I usually
come early to school to pick up my son at lunchtime. They got there maybe 10 or
20 minutes before the kids come out. I recognized them. They had already told
me that something was going to happen to my son and to my wife. I didn’t
hesitate. I jumped the school fence with my son. I pushed him over and then I
jumped. Later in the day, the teachers told me that [the gang members] were
looking for a kid of my son’s age. I didn’t send him back to school.…
We had some savings from three or four years so I sent my son and my wife to
the United States. Once I knew they were safe, I fled too.[24]

Mercedes R. also felt threatened because of her inability to
pay “taxes” to the gangs in Honduras. She said, “I was facing
threats from the gangs because I had a store that sold food. Starting in 2013,
I spent a year paying them dollars and then I couldn’t anymore. I felt
like I wasn’t living anymore. I mistrusted everyone. I didn’t feel
safe.”[25]

People who witness murders or other crimes committed by
gangs often fear for their lives. Roberto L., who was deported from the United
States to Honduras in September 2014, said:

They killed my mother right in front of me. She had a small
clothing shop. I was shot at the same time. This was in September 2013. I have
been fleeing since, because I know they are looking for me. I have two kids
here but I can’t see them because that would put them in danger. They
can’t know I’m here. The assassins who are looking for me are at a
national level, they will find me anywhere. I’m just going to be here for
three weeks, then I’ll try again.[26]

Alicia R. explained that her witnessing her mother’s
murder put her at risk from gang members:

They took my mother’s life.… The day that she
died I was going to pick her up because she had some money to give me. I got
there and then the criminals who killed her arrived. I witnessed everything
that happened.… They were coming to kill somebody who was there and she
was there too. She didn’t have any problems. The issue is that I saw it
and they saw me. They were supposedly from a gang called “18” here.
The people from the gangs don’t have any heart, whether with adults,
children. They don’t have hearts.

We buried my mother … and then I had to leave the
house we lived in because they came to look for us. I left everything. I went
to my mother in law’s house and then an aunt’s house. I keep moving
between these places for protection because when you get to one place or
another, they find out quickly. They check. So as not to be in danger I always
move, so that I’m never in the same place …I
can’t rest. I can’t even work here. I’ve always lived here
but now I have to stay on the move from place to place to protect myself from
them and to protect the lives of my children. I don’t have any peace. I
don’t want to be in this country because my life is in danger.[27]

Jacobo E., who was deported from the United States to
Honduras in August 2014, said he was living in fear for his life. He told Human
Rights Watch,

I’ve always worked. I’ve never been in a gang.
I was baptized as a Mormon in 1994 and I have four kids with my wife. I had to
flee though because my wife started an affair with a guy from “18.”
… I saw the guy leaving my house one day and we had a fight. Then they
told my sister that the gang was going to kill me, so I fled. Now that
I’m back here again I don’t go out. I can’t. My parents are
supporting me and I live with my sister…. I put on a motorcycle helmet
inside the house to come here.

I can’t work. If I look for work they’ll see
me. They are in charge in many places, the “18” is nearly
everywhere. Being locked up like this is ugly. I think about my children all
the time. I can’t contact them or tell them that I’m back in the
country though. That would be dangerous.

The pervasive nature of gang violence in Honduras places
random individuals under threat. Marlon J., who was deported from the United
States to Honduras in August 2014, said,

I was a door-to-door salesman in a neighborhood called La
Canada. One day I was passing by a corner with three guys just standing there.
I wasn’t afraid because I usually walked around there. But then one of
them ran at me and shot me seven times in the back. They left me for dead …
I spent two months in the hospital and it took seven months to be able to walk.

When I came back to work one of my clients told me the gang
was after me because that guy was going through a test. He had to kill the
first person who walked by, to show he was brave. He would have to kill me now
since I was supposed to be dead. I went to another part of the city, but then
my brother-in-law was killed for not paying the “war tax.” That
made me even more afraid.

I’m a father of two kids, two and five years old. I
have a lot to live for. When they deported me from the United States they said
they would put me in prison for six months if I come back. It doesn’t
matter to me if I get six months, at least in Port Isabel [detention center in
Texas], it’s safe. What I want is to be out of here.[28]

Returned migrants to Honduras did not feel the Honduran
authorities were able or willing to protect them. As Marlon J., put it, after
receiving seven gunshot wounds at the hands of a gang initiate, “Here in
Honduras, you can’t file a police complaint because after that the gang
comes and finishes your family. Delinquency is what governs.”[29]

Alicia R., who witnessed her mother’s murder, also
felt she could not seek protection from Honduran police:

I never filed a complaint because sometimes in this country
there is a lot of corruption.… Sometimes the police work together with
the criminals.… If you go do something like that [lodge a complaint]
sometimes that means they are going to be waiting for you outside of the police
station.[30]

The Universal Declaration of Human Rights provides that
“[e]veryone has the right to seek and to enjoy in other countries asylum
from persecution.”[31]
In the past two decades, US laws and practices have increasingly narrowed that
right.

In 1996, as part of the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), the US Congress enacted a new provision
called “expedited removal.” It allows the summary expulsion of
noncitizens who have not been admitted or paroled into the US, who have been in
the US for less than two years, and who present fraudulent documents or have no
documents. Unless they express a fear of persecution or torture upon return to
their home countries or indicate an intention to apply for asylum, they may be
deported immediately and will be barred from returning to the US for at least
five years, and often much longer.[32]

Initially, the US government applied expedited removal
provisions only to noncitizens arriving at official entry points along the
border or at airports known as “ports of entry.” Over the last
decade, however, the Department of Homeland Security (DHS), which was
established in 2002 after the September 11, 2001 attacks on the United States,
has applied expedited removal procedures to people apprehended along the entire
US border. Under DHS regulations this includes people apprehended within 100
miles of the border.[33]

For asylum seekers—those in need of protection from
forced return—the IIRIRA created another hurdle, called reinstatement of
removal. If an individual is removed or voluntarily leaves under an order of
removal, and subsequently reenters the United States illegally, they face the
reinstatement of the previous order.[34]
A border crosser whose order has been reinstated is barred from applying for
asylum but may access other remedies such as withholding of removal or
protection from return to torture under the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention
against Torture”), to which the US is a party.[35]

Many individuals crossing the border first discuss their
cases with a Customs and Border Protection agent who, under US law, is supposed
to inform them that they may ask for protection if they have a fear of
returning home. If a fear of return is expressed, the agent should flag them
for a more thorough assessment known as a “credible fear”
interview.[36]
Research by Human Rights Watch and others show that the CBP’s methods for
interviewing migrants in expedited removal procedures are seriously flawed.[37]

A primary finding of Human Rights Watch’s
investigation in Honduras is that individuals seeking asylum are not being
flagged for credible fear interviews by CBP officers. This is supported by US
government data. Between October 2010 and September 2012, the vast majority of
Hondurans, 81 percent, were placed in the fast-track expedited removal and
reinstatement of removal proceedings; only a miniscule minority, 1.9 percent,
were flagged for credible fear assessments by CBP.[38]

The data also show low rates of credible fear referrals by
CBP for nationals of Mexico, El Salvador, and Guatemala. Only 0.1 percent of
Mexicans, 0.8 percent of Guatemalans, and 5.5 percent of Salvadorans in
expedited or reinstatement of removal were referred to a credible or reasonable
fear interview by CBP. However, 21 percent of migrants from countries other
than these, who underwent the same proceedings in the same years, were flagged
for credible fear interviews by CBP. On October 9, 2014, Human Rights Watch
requested updated apprehension data from CBP, which could shed light on the
trends in CBP credible fear referral rates during the 2013 and 2014 influx of
migrant adults, families and children from Central America.

As discussed above, those unauthorized migrants who are
flagged for having a fear of return, proceed to a pre-asylum screening to
determine whether there is a significant possibility that they can establish
persecution or fear of persecution before an immigration judge.[39]

In recent years, migrants from Honduras, Guatemala, and El
Salvador have formed an increasing proportion of the credible fear referrals
received by USCIS.[40]
Absolute numbers of Central Americans identified for credible or reasonable
fear screening have also been increasing. Referrals of Hondurans, for instance,
have increased from 1,108 individuals in 2006 to 8,539 in 2013.[41]

Most of these referrals, however, do not come from CBP,
despite CBP’s proactive duty to screen migrants it places in expedited or
reinstatement of removal for fear of return to their country of origin. In
2012, for example, CBP referred only 615 of the 2,405 Hondurans who eventually
received credible fear interviews.[42]
Approximately three-quarters of the credible fear referrals USCIS conducted in
2012 came from agencies other than the CBP, even though that year CBP was
responsible for approximately 57 percent of all noncitizen apprehensions.[43]

A migrant may be referred by an immigration official after they
have left CBP custody and entered the custody of Immigrations and Customs
Enforcement (ICE), the agency responsible for more prolonged detention of
migrants. ICE, however, does not have a duty to proactively screen all migrants
in its custody for their fear of return. The majority of credible and
reasonable fear referrals that USCIS received in 2011 and 2012 did not come
from CBP but other immigration agencies, which learn of migrants’ fear of
return on an ad-hoc basis.

For those who are referred to credible fear interviews, the
likelihood of being permitted to apply for asylum appears to have fallen
significantly in recent months. This comes in the wake of problematic new
guidance for asylum officers conducting interviews (referred to as the “lesson
plan”) issued in February 2014.[44]
Before the lesson plan was enacted, in January 2014, 83 percent of those who
received credible fear interviews were permitted to apply for asylum. In July
2014, six months later, that figure was 63 percent.[45] While this could be an
artifact of a larger number of credible fear referrals or a smaller sample size
of the months since the plan, this evidence suggests that the lesson plan has
reduced the proportion of interviews in which credible fear is found. The
precipitous apparent decline occurred in the period after the release of the
new lesson plan, and not in tandem with the rise in referrals. Asylum law
experts have criticized the lesson plan for inappropriately raising the burden
of proof required at the credible or reasonable fear stage.[46]

If a noncitizen is found to have a credible fear, they may
then apply for asylum as a defense against deportation in immigration court.
Though the asylum seeker will be able to go before a judge to make their claim
for protection, they have no right to a government-appointed lawyer to assist
them. ICE may detain noncitizens going through these immigration court
procedures for the duration of the deportation process on a discretionary
basis, though some become eligible for release on bond or on their own
recognizance once they are transferred to immigration court.

US Customs and Border Protection officers are required to
screen people in expedited removal for fear of return to their country and, if
the noncitizen expresses fear, refer them for a credible fear interview.[47] Despite
this requirement, Human Rights Watch spoke with deportees who reported that
they were not informed of the availability of protection or that they were not
referred to an asylum officer for a credible fear interview after they told a
Border Patrol agent they were afraid to return to their country.[48] Some
would-be asylum seekers also reported that Border Patrol officers harassed,
threatened, and attempted to dissuade them from applying for asylum.

Additionally, CBP officers conduct interviews about fear of
return in a sometimes crowded and public enforcement setting and without
confidentiality from family members or others, factors that appear to hamper
the ability of the officers to identify those in need of more in-depth
screening. Human Rights Watch observed the interview location for detainees at
the McAllen Border Patrol station in Texas in July 2014. CBP officers showed
Human Rights Watch a large public space in which they process migrants at a
horseshoe-shaped table designed to accommodate multiple officer-migrant pairs
in close proximity. Holding cells ring the room, with concrete floors and walls
and toilets behind half-high barriers. CBP officers told and demonstrated to
Human Rights Watch how they check their weapons before entering, but wear their
uniform with holsters – which can be particularly intimidating to persons
fearful of the security forces in their home countries.[49] CBP officers told
Human Rights Watch that the McAllen Border Patrol station was physically
similar to many other such stations along the Mexican border.

Migrants who were not referred for a credible fear interview
told Human Rights Watch that interviews by CBP are brief and focused on
explaining additional consequences of deportation, such as bars to return for
set periods of time, rather than exploring their fear of return. “The
officers don’t pay attention to you. If you say you are afraid they say
they ‘can’t do anything,” Marlon J. told Human Rights Watch.
“All they said to me was that if I came back they would give me six
months in prison.”[50]

Some Border Patrol officers apparently tried to convince
border crossers not to apply for asylum. “I asked for asylum,” said
Jacobo E., who fled after being shot and seeing his mother killed for her
failure to pay fees to gang members to run her small clothing business.
“The officer told me don’t apply, 90 percent of the people who do
don’t get it.”[51]
Some deportees and detainees with whom we spoke reported that they resisted
signing forms offered by Border Patrol, or were coerced into signing something
they did not understand. “‘Fingerprint, fingerprint,’ they
just kept saying, I didn’t know what I was signing,” said Jacobo E.
who was in hiding in Honduras after being deported.[52] Maribel V., who was
deported from the Artesia, New Mexico family detention center with her children,
said:

They made me sign the deportation in the
“icebox” [slang for the cold Border Patrol detention cells]. No
judge or lawyer spoke with me. They called me and they said that I had to sign
this paper. They told me that it was for a judge to see my case. But I never
saw a judge and they told me I had a deportation order. They told me I was
already deported.[53]

Mateo S., who had fled death threats from a gang, said he
tried to not sign papers agreeing to his deportation:

I was detained for six days in the cold rooms. They just
asked me my name, where I came from, and they told me I was punished for five
years and I had to sign the deportation. I didn’t want to sign. When the
moment of the interview came I said I wouldn’t sign. The officer insulted
me. They started waking me up every couple of hours and moving me from cell to
cell. It was hard…. The officer filled out all the paperwork and told me
to sign, I told him I wouldn’t sign and I hoped the US government would
admit me. He ripped up all the paper and threw it almost at my face. He told me
I was deported anyway. He said he “had the law in his hand and he was
going to sign for me.” I told him he was violating my right to life and
he said, “You don’t have rights here.”[54]

Alicia R., an asylum seeker who crossed the border with her
two children, 3 and 10 years old, told officers of her fear of returning to
Honduras. In an attempt at self-preservation, thinking it would keep her from
being deported to Honduras, she also told them she was from Mexico:

The truth is because I didn’t want to come back
here [to Honduras], I told them that I was from Mexico. I told them, I
cried, I said I couldn’t return to my country. Sometimes
you are so afraid … to be sent back so you just say something.[55]

After two days, US officials turned Alicia and her children
over to the Mexican government, which deported them two weeks later back to
Honduras.[56]

Some migrants told Human Rights Watch that when they tried
to tell US officials about their fear of returning, they were denied further
exploration of that claim, and were put in touch with consular officers from their
country of origin. This practice runs counter to international protection
standards, which recognize the problematic relationship asylum seekers may have
with officials from their home countries. “The [US] officers don’t
speak with you. They just set it up so you can speak with a consular officer
and then so you sign the papers,” said Marlon J.[57]

In some cases, migrants reported that consular officers
dissuaded them from making international protection claims. Mateo S. explained,

They put me in touch with someone who they said was the
consul of Honduras on a video screen. I explained to him in total confidence
that I was fleeing my country and the threats I was facing. He told me I
didn’t have a case, so why try?[58]

V. Detention and Access
to Counsel

None of the asylum seekers Human Rights Watch met with who
had been deported to Honduras had had lawyers while in the United States,
though several had tried to obtain them. While many asylum seekers without
financial resources have difficulty obtaining legal counsel in the US, it is
particularly difficult for those who are placed in detention facilities near
the border and put in expedited proceedings.

Detention of noncitizens in expedited removal proceedings
and reinstatement of removal is mandatory under US law.[59] Because nearly all
arriving Central Americans without authorization are placed in expedited
removal proceedings, the vast majority are also detained prior to deportation.

Detention adds to the burdens and fears asylum seekers face.
The fact that it is administrative rather than criminal detention may be of
little practical consequence. Several told Human Rights Watch how being
detained weighed on them. “I didn’t have any idea what a prison
was,” said Jacobo E. “They just treated me like a criminal.”[60]

Detention also makes it more difficult for asylum seekers to
gather evidence that might be useful in their cases. Roberto L. was detained
for six months while he attempted to apply for asylum on the basis of threats
and past harm. “They said I needed proof,” he said. “But they
said you have to be detained for [an additional] six months [to keep applying
for asylum], so I signed the deportation.”[61]

Detainees also face considerable obstacles in obtaining
legal counsel, a challenge made more difficult when they are held in detention
facilities. “I need to find a lawyer but it seems impossible,” one
woman from Honduras then detained in Artesia, New Mexico told Human Rights
Watch. “I will die if I am sent back to my country.”[62] Maria F.
was deported in September after being detained at Karnes family detention
center with her 8-year-old daughter. “They give you a paper with [the
names of] free lawyers. But nobody answers when you call.”[63]

One legal service provider in San Francisco agreed that
detained migrants had difficulty locating legal counsel:

We get many calls from people whose family members are in
detention, including in Texas. Usually we get the call after they’ve
called multiple other organizations or lawyers. The few legal service providers
who have called them back charge very high fees. There’s just a very high
demand and not enough supply. We never get initial calls from detainees
themselves. They need to have someone on the outside who can help them find a
lawyer and even then it’s very difficult.[64]

In 2005, the United States Commission on International
Religious Freedom (USCIRF), a government agency, found that the expedited
removal process lacks adequate safeguards to prevent improper removal and
extended detention of bona fide refugees in the United States.[65] USCIRF’s
analysis also found that asylum seekers in expedited removal who are
represented by an attorney were granted relief 25 percent of the time, while
asylum seekers who were representing themselves were granted relief 2 percent
of the time.[66]
Robert A. Katzmann, a judge of the US Court of Appeals for the Second Circuit,
summed up the results of a two-year study on immigrant representation in New
York: “The two most important variables affecting the ability to secure a
successful outcome in a case (defined as relief or termination) are having
representation and being free from detention.”[67]

Human Rights Watch has previously documented how detaining
noncitizens, sometimes far from family members and friends, affects their
access to counsel.[68]
The Executive Office for Immigration Review recently reported that the
percentage of represented cases in immigration court has increased in the past
five years from 35 percent in 2009 to 59 percent in 2014.[69] Yet there is a large
gap between representation rates for detained versus non-detained immigrants in
immigration court proceedings. The New York Immigrant Representation Study
found in 2011 that 40 percent of detained immigrants and 73 percent of
non-detained immigrants in the New York City area had lawyers.[70]

Things are even worse for migrants detained in south Texas,
like most of those interviewed for this report. Texas Appleseed, a non-profit
legal services organization, found 86 percent of immigration detainees in Texas
were unrepresented in 2009.[71]
Several more recent reports indicate that systematic problems with
detainees’ access to counsel have not been resolved.[72] The American
Immigration Council and Penn State Law found in 2012 that,

ICE fails to provide or facilitate access to counsel when
questioning represented individuals, restricts attorney-client communications
in detention facilities, and has also discouraged noncitizens from seeking
legal counsel.[73]

Dani A., one of the few individuals interviewed by Human
Rights Watch who had passed the credible fear interview stage, ended up
deported to Honduras apparently due to her inability to secure counsel while in
detention. At 21, Dani had been in an abusive relationship for four years in
which her husband regularly beat her and kicked her. Two years ago, her
husband’s cousin ambushed her in a deserted part of town and raped her.
She went to the police to report the rape, but “nothing was
resolved.”[74]
Not knowing she had made a complaint, the cousin told her that if she told
anyone about the attack he would kill her. She feared the cousin would harm her
again and that her husband would seek her out and harm her.

After entering the United States and being identified by CBP
for further screening, Dani spoke with an asylum officer who found that there
was “a significant possibility” she could establish in a full
hearing that she would qualify for refugee status.[75] A recent decision by
the Board of Immigration Appeals recognizes domestic violence as a basis for
asylum, establishing a formally binding precedent upholding earlier immigration
court rulings.[76]

Detained in Houston, Texas, with only three years of formal
schooling and no money to pay a lawyer, Dani tried to move forward with her
asylum claim. Gender-based asylum claims, including those related to domestic
violence like Dani experienced, are particularly legally complex. Officials
gave her a list of free legal services providers in the area but she said,
“They never answered my calls.” With the help of other detainees
who spoke more English, she filled out the application for asylum or
withholding of removal. To the question “Are you afraid of being
subjected to torture in your home country or any other country to which you may
be removed?,” Dani’s asylum application read, “Am afraid to go
back to abusers. Nature of turture: sexual assault and beat to death.”
[sic] Where the form asked if she feared harm or mistreatment if she returned
to her home country the form stated: “1) Kill by gang husband gang
members 2) Husband and husband gang members 3) because I am running away from
my husband, he can kill me and sexsually asult.” [sic]

These two responses formed the substance of Dani’s
asylum application. She told Human Rights Watch that the judge in charge of her
case ordered her deported at the first hearing after she filed the application.
“I wanted to get a lawyer,” she said. “I didn’t have
one.”

Family detention presents particular due process problems.
In its guidelines on international protection for child asylum claims, the
United Nations High Commissioner for Refugees (UNHCR), the UN refugee agency,
recommends separate and confidential interviews for all family members to
give each an opportunity to discuss any independent claims for protection.[77] UNHCR has
also found that a lack of confidentiality could hinder the ability of
women to fully access asylum procedures and recommended that “a
confidential personal interview, that is gender and culturally sensitive,
should be guaranteed in the asylum process, to help ensure access.”[78]

Officials at the Artesia, New Mexico, family detention
center told Human Rights Watch in July 2014 that credible fear interviews were
being conducted with female detainees in the presence of their children. The
children’s presence may have inhibited women from speaking frankly,
interfering with their ability to make their claim, and may further traumatize
both the mother and her children.

Noemi M., who was detained while awaiting an asylum
interview, told Human Rights Watch that she would only speak about the death
threats she received from gangs in Honduras when her 8- and 11-year-old
children were out of earshot.[79]
DHS officials have since told Human Rights Watch that women in Artesia are
being interviewed by asylum officers separately from their children.[80]

Once a noncitizen in expedited removal has passed a credible
fear interview, detention is no longer legally mandated but at the discretion
of immigration officials. US officials in Artesia told Human Rights Watch that
women and children who file for asylum in immigration court could be detained
throughout the entire process, which can last months or even years. Immigration
attorneys report that ICE is opposing bond requests from women and children in
family detention, arguing that the families pose national security threats.[81] Such
prolonged detention, with no defined end date, can cause serious psychological
harm, especially for children, including anxiety, depression, and long-term
cognitive damage.[82]
Marleen V. from El Salvador, who had been detained with her 2-year-old daughter
for two weeks at the time she spoke with Human Rights Watch, said of her
daughter, “I notice her losing weight. She just won’t eat.”[83]

VI. US Law and International
Refugee Law

The United States committed to the central guarantees of the
1951 Refugee Convention by its accession to the Refugee Convention’s 1967
Protocol.[84]
The US government passed the Refugee Act of 1980 in order to bring the
country’s laws into compliance with the Refugee Convention and Protocol,
by incorporating into US law the convention’s definition of a
“refugee” and the principle of nonrefoulement, which prohibits the
return of refugees to countries where they would face persecution.[85]

The US, as a party to the Convention against Torture, is
also obligated not to return someone to a country “where there are
substantial grounds for believing that [they] would be in danger of being
subjected to torture.”[86]

As described above, Human Rights Watch is concerned that the
US system of expedited removal and reinstatement of removal fails to ensure
that the US complies with these international legal obligations, and defeats
other mechanisms already in place in US law (specifically the asylum process in
US immigration courts) to ensure that asylum seekers are identified and have a
fair process through which to present their claims.

In particular, the Hondurans interviewed for this report
described rushed interviews and unsympathetic reactions from CBP officials that
run contrary to international standards on appropriate procedures for the
determination of refugee status. The UNHCR’s authoritative Handbook on
Procedures and Criteria for Determining Refugee Status (“UNHCR
Handbook”), states,

It should be recalled that an applicant for refugee status
is normally in a particularly vulnerable situation. He finds himself in an
alien environment and may experience serious difficulties, technical and
psychological, in submitting his case to the authorities of a foreign country.[87]

CBP’s role in the process—involving the same
uniformed and armed agents responsible for apprehending migrants that screen
them for fear of return—conflicts with additional guidance from the UNHCR
Handbook:

A person who, because of his experiences, was in fear of
the authorities in his own country may still feel apprehensive vis-à-vis
any authority. He may therefore be afraid to speak freely and give a full and
accurate account of his case.[88]

The rapid-fire nature of the expedited removal process, in
particular the role played by CBP at the outset, is at odds with the
recognition by UNHCR’s Executive Committee (“Excom”) that
expedited procedures may be fair only when applied to cases that are
“clearly fraudulent or not related to the criteria for the granting of
refugee status laid down in the [1951 Refugee Convention].”[89]

Human Rights Watch is also concerned that interviews of
Honduran asylum seekers by Honduran consular officials do not meet
international standards. The UNHCR Handbook states that, by definition, a
refugee’s relationship with their country of origin may be severely
strained. The Handbook also states that, “it is, of course, of the utmost
importance that the applicant’s statements will be treated as
confidential.” In all cases in which a migrant has expressed a fear of
returning home to US border or immigration officials, it is a serious breach of
confidentiality to encourage and facilitate meetings between an asylum seeker
and an official of the asylum seeker’s home government. US immigration
officials, first, should take all reasonable measures to determine whether a
migrant is an asylum seeker, and, second, should preserve confidentiality,
which includes insulating them from home government officials while their
claims are pending.

Detention of asylum seekers should always be a measure of last
resort and should only be for reasons clearly recognized in international law,
such as concerns about danger to the public, or an inability to confirm an
individual’s identity.

Expanding family detention is inconsistent with
international standards, particularly the fundamental principle—reflected
in both international and US law—that “best interest of the
child” should govern the state’s actions toward children.[90] If
detention of children is used at all, it should only be in rare and exceptional
cases, and for the shortest amount of time and in an appropriate setting where
the children’s needs can be addressed without causing further trauma or
harm.[91]
Deprivation of liberty has a negative effect on children’s capacity to
realize various fundamental rights, including the rights to education, health,
and family unity.79

Previously, the US government made greater use of
alternatives to detention for families, such as proven “appearance
support” programs that ensure migrants in immigration proceedings understand
how and when to appear.[92]

Finally, using detention explicitly as a deterrent to entry
into the United States for people seeking international protection is unlawful
under international law[93]
and US law.[94]
However, the Obama administration has openly stated that one purpose for the
increase in family detention beds is to deter all unauthorized migrants from
entering the country. DHS Secretary Jeh Johnson has referred to detention as
part of an “aggressive deterrence strategy” in Senate testimony and
has told the media that he believed detention “would deter future illegal
crossings.”[95]
The ICE Assistant Director of Investigative Programs for Homeland Security
Investigations has stated that “[i]mplementing a ‘no bond’ or
‘high bond’ policy would help alleviate these disruptions
by deterring further mass migration.”[96] The ICE press release
announcing the Dilley, Texas family detention facility stated: “These
facilities will help ensure more timely and effective removals that comply with
our legal and international obligations, while deterring others from taking the
dangerous journey and illegally crossing into the United States.”[97]

As we were finalizing this report, the Obama administration
on September 30, 2014 announced a targeted program to process from inside their
home countries children with lawfully present parents in the United States for
admission to the United States as refugees.[98]
The program, according to administration officials, would provide a safe
alternative to the dangerous journey to the United States through Mexico for
those children who would qualify to be reunited with a lawfully present parent.

While this program could potentially assist the relatively
small group of children who would qualify, it would do nothing to address the
protection needs of the vast majority of children and adults who do not have a
lawfully present parent in the United States or who did have such a parent but
who would be too afraid to wait for months or years to be processed after being
threatened by a gang. The existence of this program should not be used as an
excuse for continuing or even expanding the harsh measures already in place at
the border—and in Mexico—to block Central Americans from seeking
asylum and to summarily return them to places where they face a serious risk of
harm.

Whatever policies the Obama administration seeks to put in
place to deter unauthorized migration, it needs to preserve the right to seek
asylum from persecution. The US government should ensure that it does not
deport people crossing the US-Mexico border without proper consideration of
their need for international protection.

Recommendations

The recommendations below apply to US treatment of
unauthorized migrants not only from Honduras, the research focus of this
report, but from similarly situated countries where large numbers of migrants
and asylum seekers are fleeing violence by non-state actors and conditions that
prevent that country’s nationals from returning to a situation of basic
security, notably Mexico, El Salvador, and Guatemala.

To ensure that migrants arriving at the US-Mexico border who
express fear of return to their countries are flagged for screening that would
permit them to access refugee protection or protection under the Convention
Against Torture:

The
Department of Homeland Security should:

Cease the use of expedited removal for
individuals and families arriving at the US border with Mexico from countries
experiencing conditions that prevent the country’s nationals from
returning to a situation of basic security;

Ensure via training; modification of
oversight mechanisms; accountability measures, including better quality
assurance supervision; and any and all other appropriate measures that initial
interviews of arriving noncitizens conducted by Customs and Border Protection
(CBP) properly identify individuals who express fear of return so that they are
afforded “credible” or “reasonable” fear assessments;

Until that time, instruct CBP to apply a
presumption of fear of return for migrants in expedited removal or
reinstatement of removal who are nationals of countries experiencing conditions
that prevent the country's nationals from returning to a situation of basic
security; and

Unless and until Department of Homeland
Security (DHS) can implement appropriate protection interviews as a part of
expedited removal or it instructs CBP to adopt a presumption for asylum
screening for Central Americans,
instruct Immigration and Customs Enforcement (ICE) to conduct a
proactive screening for fear of return for every non-citizen arriving in its
custody from CBP custody.

To ensure that credible and reasonable fear interviews
are fair and efficient:

The
Department of Homeland Security should:

Ensure that United States Citizenship and
Immigration Services (USCIS) has adequate staffing levels, training, and
supervision; and

Review guidance for USCIS staff to ensure
that the procedures used in “credible fear” interviews do not
unduly bar asylum seekers from access to immigration courts.

Adopt legislation to address removal-hearing
delays, eliminate backlogs and conduct prompt hearings, including by increasing
the number of immigration court judges, law clerks, government immigration
lawyers and related resources, as well as increasing incentives for legal aid
and private lawyers to represent migrants in underserved areas.

To protect children and adults from the harmful effects
of detention and ensure the due process rights of asylum seekers:

The
Department of Homeland Security should:

Revert to previous US government policy that
limited the detention of arriving migrant families with children. This would
entail closing the new family detention center in Artesia, New Mexico, reverting
the family detention center in Karnes, Texas back to a civil detention facility
for adults, and converting plans to build a 2,400-bed facility in Dilley, Texas
from family detention to adult civil detention. DHS should augment alternative
custody and monitoring programs that ensure court appearances instead of
detention for families and other border arrivals who present no danger or need
assistance to appear in court; and

Apply a presumption in favor of release on
bond or parole for asylum seekers who have passed credible or reasonable fear
screenings.

To respect asylum seekers’ right to access counsel,
improve disposition of asylum claims, and better ensure that the US does not
return people to countries where they face repression or torture:

The
administration and Congress should:

Approve reallocation of already appropriated
funds to increase access to counsel for indigent asylum seekers and those
requesting protection under the Convention Against Torture;

Consider passing a law concerning asylum
seekers akin to the provision in the Senate Border Security, Economic
Opportunity and Immigration Modernization Act (S.744) of 2013 that mandates the
US attorney general to appoint counsel, at government expense if necessary, for
unaccompanied minors, people with mental disabilities, and other non-citizens
“considered particularly vulnerable;” and

Acknowledgments

This report was researched and written by Clara Long, US
Program researcher on immigration and border policy at Human Rights Watch.
Antonio Ginatta, advocacy director for the US program, conducted interviews in
the Karnes family detention facility. Brian Root, quantitative analyst at Human
Rights Watch, conducted data analysis.

Human Rights Watch thanks the government officials, lawyers,
social service providers and others who spoke with us during the research for
this report. We are especially grateful to the Central American migrants and
asylum seekers whose participation in this research made this report possible.

[1]
Human Rights Watch interview with Alicia R. (pseudonym), San Pedro Sula,
Honduras, September 8, 2014. The names of migrants quoted in this report have
been changed in the interest of the security of those concerned.

[16]
Human Rights Watch interview with Cecilia N. (pseudonym), San Pedro Sula,
Honduras, September 8, 2014. Cecilia N. and her mother, Josefa N. (pseudonym)
were detained from July 28, 2014 until they were deported on September 6, 2014
at the Immigrations and Customs Enforcement family detention center in Artesia,
New Mexico.

[22]
Human Rights Watch interview with Jacobo E. (pseudonym), San Pedro Sula,
Honduras, September 7, 2014 (Jacobo was deported from the US in August 2014).

[23]
Human Rights Watch interview with Alicia R. (pseudonym), San Pedro Sula,
Honduras, September 8, 2014. (Alicia told US border officials that she and her
children were Mexican. She and her children were deported from the United
States to Mexico and then from Mexico to Honduras in August 2014.)

[24]
Human Rights Watch interview with Mateo S. (pseudonym), San Pedro Sula,
Honduras, September 9, 2014. (Mateo was deported to Honduras from the United
States in September 2014.)

[26]
Human Rights Watch interview with Roberto L. (pseudonym), San Pedro Sula,
Honduras, September 9, 2014. (Roberto was deported from the United States in
September 2014, after being detained for six months while seeking asylum.)

[27]
Human Rights Watch interview with Alicia R. (pseudonym), San Pedro Sula,
Honduras, September 8, 2014. (Alicia was deported from the United States to
Mexico in August 2014 before being returned to her native Honduras.)

[28]
Human Rights Watch interview with Marlon J. (pseudonym), San Pedro Sula,
Honduras, September 6, 2014. (Marlon was deported from the United States in
August 2014.)

[35]Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“Convention against
Torture”), G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at
197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987. The
US ratified the Convention against Torture in1994 and passed enabling
legislation with Foreign Affairs Reform and Restructuring Act of 1998, P.L.
105-277. The US currently implements its duties under the Convention against
Torture through a process called “withholding of removal.” 8 C.F.R.
208.16. The protections granted by the United States under the Convention
against Torture are narrower than the protections afforded to refugees. A
higher burden of proof must be shown to establish eligibility; it provides a
narrower scope of relief, such as restrictions on international travel; and
there is limited opportunity for conversion to legal permanent resident status.

[36]
8 C.F.R. 235.3(b)(4) (stating that if an applicant requests asylum or expresses
a fear of return, the “examining immigration officer shall record
sufficient information in the sworn statement to establish and record that the
alien has indicated such intention, fear, or concern,” and should then
refer the alien for a credible fear interview).

[37]
Human Rights First, “How to Protect Refugees and Prevent Abuse at the
Border: Blueprint for U.S. Government Policy,” June 2014,
http://www.humanrightsfirst.org/sites/default/files/Asylum-on-the-Border-final.pdf
(accessed October 10, 2014); Sara Campos and Joan Friedland, “Mexican and
Central American Asylum and Credible Fear Claims: Background and
Context,” American Immigration Council Special Report, May 2014,
http://www.immigrationpolicy.org/sites/default/files/docs/asylum_and_credible_fear_claims_final.pdf
(accessed October 10, 2014); Michele R. Pistone and John J. Hoeffner,
“Rules are Made to be Broken: How the Process of Expedited Removal Fails
Asylum Seekers,” Villanova University School of Law, 2006, http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?params=/context/wps/article/1049/&path_info=
(accessed October 14, 2014); US Commission on International Religious Freedom,
“Study on Asylum Seekers in Expedited Removal,” February 2005,
http://www.uscirf.gov/reports-briefs/special-reports/report-asylum-seekers-in-expedited-removal
(accessed October 10, 2014).

[47]
8 C.F.R. 235.3(b)(2) (“In every case in which the expedited removal
provisions will be applied and before removing an alien from the United States
pursuant to this section, the examining immigration officer shall create a
record of the facts of the case and statements made by the alien. This shall be
accomplished by means of a sworn statement using Form I-867AB, Record of Sworn
Statement in Proceedings under Section 235(b)(1) of the Act. The examining
immigration officer shall read (or have read) to the alien all information
contained on Form I-867A. Following questioning and recording of the alien's
statement regarding identity, alienage, and inadmissibility, the examining
immigration officer shall record the alien's response to the questions
contained on Form I-867B, and have the alien read (or have read to him or her)
the statement, and the alien shall sign and initial each page of the statement
and each correction.”). Form I-867A includes the provision that the
immigration officer read the following statement:

U.S. law provides protection
to certain persons who face persecution, harm or torture upon return to their
home country. If you fear or have a concern about being removed from the United
States or about being sent home, you should tell me so during this interview
because you may not have another chance. You will have the opportunity to speak
privately and confidentially to another officer about your fear or concern.
That officer will determine if you should remain in the United States and not
be removed because of that fear.

Form I-867B requires that the immigration officer ask
and record the answer to the question, “Do you have any fear or concern
about being returned to your home country or being removed from the United
States?” Forms I-867A&B available in Appendix A of Charles Kuck,
“Legal Assistance for Asylum Seekers in
Expedited Removal: A Survey of Alternative Practices” Expert Report in US
Commission on International Religious Freedom, “Report on Asylum Seekers
in Expedited Removal,” February 8, 2005, http://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/legalAssist.pdf (accessed October 13, 2014).

[53]
Human Rights Watch interview with Maribel V. (pseudonym), Comayagua, Honduras,
September 6, 2014. (Maribel was deported with her children in September 2104.
“Ice box” or hielera is how migrants commonly refer to
Border Patrol detention, in reference to the cold temperatures in the cells.)

[54]
Human Rights Watch interview with Mateo S. (pseudonym), San Pedro Sula,
Honduras, September 9, 2014. (Mateo was deported to Honduras from the United
States in September 2014.) Immigration attorneys have reported hearing from
other migrants of similar treatment in the McAllen Border Patrol station. Human
Rights Watch email correspondence with Carlos Garcia, Immigration Attorney in
McAllen, Texas and Rex Chen, Immigration attorney at Catholic Charities of
Newark, September 9, 2014.

[59]INA 235(b)(1)(b)(iii)(iv) (“Any alien
subject to the procedures under this clause shall be detained pending a final
determination of credible fear of persecution and, if found not to have such a
fear, until removed.”); 8 U.S.C. 1225(b)(1)(b)(iii)(iv). 8 U.S.C.
1231(a)(2) (“During the removal period, the Attorney General shall detain
the alien.”).

[65]
US Commission on International Religious Freedom, “Study on Asylum Seekers
in Expedited Removal,” February 2005,
http://www.uscirf.gov/reports-briefs/special-reports/report-asylum-seekers-in-expedited-removal
(accessed October 10, 2014).

[84]Convention Relating to the Status of Refugees, 189
U.N.T.S. 150, entered into force April 22, 1954, http://www.unhcr.org/3b66c2aa10.html; U.N. Protocol Relating to the Status of Refugees, 606
U.N.T.S. 268, entered into force October 4, 1967. The United States acceded to
the 1967 Protocol in 1968.

[85]The US
incorporated the provisions of the 1967 Protocol into domestic law through the
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat 102 (1980). As the Supreme
Court has confirmed, a primary purpose of Congress in passing the Refugee Act
“was to bring United States refugee law into conformance with the 1967
United Nations Protocol.” INS v. Cardoza-Fonseca, 480 U.S. 421,
426 (1987); see also INS v. Stevic, 467 U.S. 407, 416-24 (1984) (providing
a history of the incorporation of the Refugee Convention standards into US law
through the Refugee Protocol and the Refugee Act of 1980.)

[87]
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, UN
Doc. HCP/1P/4/Eng/REV.2, 1979, (edited 1992), para. 190. The UNHCR Handbook was
prepared at the request of member countries of UNHCR’s Executive Committee
(“ExCom”) for the guidance of governments. The Handbook is an
authoritative interpretative guide and is treated as such by governments. See
Guy Goodwin-Gill, The Refugee in International Law, (Oxford: Oxford
University Press, 1996), p. 34.

[89]
UNHCR Executive Committee Conclusion No. 30 (XXXIV) – 1983 – The
Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or
Asylum, para. (d). The Executive Committee of the High Commissioner’s
Program is UNHCR's governing body. Since 1975, ExCom has passed a series of
Conclusions at its annual meetings. The Conclusions are intended to guide
states in their treatment of refugees and asylum seekers and in their
interpretation of existing international refugee law. While the Conclusions are
not legally binding, they do constitute a body of soft international refugee
law. They are adopted by consensus by the ExCom member states, are broadly representative
of the views of the international community, and carry persuasive authority.
Since the members of ExCom, which includes the US, have negotiated and agreed
to their provisions, they are under a good faith obligation to abide by the
Conclusions.

[90]The Convention on the Rights of the Child (CRC) in
article 3(1) gives the child the right to have their best interests assessed
and taken into account as a primary consideration in all actions or decisions
that concern them, both in the public and private sphere. Convention on the
Rights of the Child, G.A.
res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49
(1989), entered into force Sept. 2, 1990. The US has signed but not
ratified the CRC, meaning that it may not take any action that is contrary to
the object and purpose of the treaty. The Committee on the Rights of the Child,
which monitors adherence to the CRC, has identified article 3(1), as one of the
four general principles of the CRC for interpreting and implementing all the
rights of the child, and applies it as a dynamic concept that requires an
assessment appropriate to the specific context. UN Committee on the Rights of
the Child, General Comment No. 14 (2013) on the right of the child to have his
or her best interests taken as a primary consideration (art. 3, para. 1), U.N.
Doc. CRC /C/GC/14 (2013), available at http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf (accessed July 1, 2014). In the United States, all
states and the District of Columbia have statutes “requiring that the
best interests of the child be considered whenever specified types of decisions
are made regarding a child’s custody, placement, or other critical life
issues.” Child Welfare Information Gateway, Department of Health and
Human Services, “Determining the Best Interests of the Child,”
2012, available at https://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interest.cfm (accessed October 13, 2014) (listing state statutes
requiring best interests considerations and factors considered for such
determinations). One form of immigration relief, Special Immigrant Juvenile
Status, requires consideration of the best interests of the child. INA
101(a)(27)(J), 8 U.S.C. 1101 (requiring, in part, a finding that return to the
child’s country of origin is not in the child’s best interests).

[91]The Committee on the Rights of the Child in
February 2013 urged states to “expeditiously and completely cease the
detention of children on the basis of their immigration status,”
concluding that such detention is never in the child’s best interest. In
the interim, the committee stated, while immigration detention of children
remains, governments should impose strict time limits to the child’s
detention in order to minimize the loss of education and impact on mental
health. UN Committee on the Rights of the Child, “Report of the 2012 Day
of General Discussion on the Rights of All Children in the Context of
International Migration,” para. 78, February 2013, available at
www2.ohchr.org/english/bodies/crc/docs/discussion2012/2012CRC_DGD-Childrens_Rights_InternationalMigration.pdf
(accessed September 15, 2014).

[93]
According to UNHCR, “detention policies aimed at deterrence are generally
unlawful under international human rights law as they are not based on an
individual assessment as to the necessity to detain.” See UNHCR,
“Detention Guidelines: Guidelines on the Applicable Criteria and
Standards relating to the Detention of Asylum-Seekers and Alternatives to
Detention,” 2012, http://www.unhcr.org/505b10ee9.html (accessed October
10, 2014). Detention that is imposed to deter future asylum seekers, or to
dissuade those who have commenced their claims from pursuing them, is
inconsistent with international norms. Furthermore, detention is not permitted
as a punitive—for example, criminal—measure or a disciplinary
sanction for irregular entry or presence in the country. See 1951 Refugee
Convention, art. 31.

[94]
See Zadvydas v. Davis, 533 U.S. 678 (2001),
https://supreme.justia.com/cases/federal/us/533/678/ (accessed October 13,
2014) (describing immigration detention as “nonpunitive in purpose and
effect”); Wong Wing v. United States, 163 U.S. 228 (1896),
https://supreme.justia.com/cases/federal/us/163/228/ (accessed October 13,
2014) (finding that under the Fifth and Sixth Amendments to the Constitution,
the detention of non-citizens was valid only to facilitate the “expulsion
of aliens.”).